Dunnet Bay Construction Company v. Borggren Brief of Amicus Curiae in Support of Defendants-Appellees and Affirmance

    United States ©curt of Appeals
for the

§>euentlj Circuit

Case No. 14-1493

DUNNET BAY CONSTRUCTION COMPANY, an Illinois Corporation,

Plaintiff-Appellant,

— v. —

ERICA J. BORGGREN, in her official capacity as Acting Secretary for the 
Illinois Department of Transportation, et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE CENTRAL DISTRICT OF ILLINOIS, CASE NO. 3:10-CV-03051, 

THE HONORABLE JUDGE RICHARD MILLS

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC. IN SUPPORT OF 
DEFENDANTS-APPELLEES AND AFFIRMANCE

Sherrilyn A. Ifill, Esq.
President & Director-Counsel 

Janai S. Nelson, Esq. 
Christina A. Swarns, Esq. 
Ryan P. Haygood, Esq. 
ReN ika C. M oore, Esq. 
Veronica J. Joice, Esq. 
NAACP Legal Defense 

& Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, New York 10006 
(212) 965-2200

Danielle C. Gray, Esq. 
Daniel S. Shamah, Esq. 
Rakesh K ilaru, Esq. 
Elizabeth T. Augustine, Esq. 
O ’Melveny & Myers LLP 
Times Square Tower 
Seven Times Square 
New York, New York 10036 
(212) 326-2000

Attorneys for Amicus Curiae



CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Dunnet Bay Construction Company v, Erin Borggren, et al.________________________________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ 1 PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:

O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ Christina A. Sw am S ______________________________  Date: October 31,2014

Attorney's Printed Name: Christina A. Swarns___________________________________________________________

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ______ No _ )

Address: NAACP Legal Defense & Educational Fund, Inc.____________________________________________

40 Rector Street, 5th Floor, New York, New York 10006

Phone Number: (212) 965-2200_________________________  Fax Number: (212) 226-7592___________________

E-Mail Address: cswarns@naacpldf.org

rev. 01/08 AK

mailto:cswarns@naacpldf.org


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Punnet Bay Construction Company v. Erin Borggren, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:
O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if  any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ Jana i S. N e lson ___________________________________  Date: October 31, 2014

Attorney's Printed Name: Janai S. Nelson____________

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ______ No )

Address: NAACP Legal Defense & Educational Fund, Inc.

40 Rector Street, 5th Floor, New York, New York 10006

Phone Number: (212) 965-2200_________________________ Fax Number: (2 1 2 )2 2 6 -7 5 9 2 _____________________

E-Mail Address: jnelson@naacpldf.org

rev. 01/08 AK

mailto:jnelson@naacpldf.org


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Punnet Bay Construction Company v. Erin Borggren, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

1 ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:
O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S / R yan P. HayCjOOd_______________________________ Date: October 31,2014

Attorney's Printed Name: Ryan P. Haygood___________

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ______ No _ >

Address: NAACP Legal Defense & Educational Fund, Inc.

40 Rector Street, 5th Floor, New York, New York 10006

Phone Number: (212) 965-2200_________________________  Fax Number: (2 1 2 )2 2 6 -7 5 9 2 ___________________

E-Mail Address: rhaygood@naacpldf.org

rev. 01/08 AK

mailto:rhaygood@naacpldf.org


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Punnet Bay Construction Company v. Erin Borggren, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing^the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:
O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ R eN ika  C. M oore_________________________________ Date: October 31,2014

Attorney's Printed Name: ReNika C. Moore

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ______ N o_

Address: NAACP Legal Defense & Educational Fund, Inc,

40 Rector Street, 5th Floor, New York, New York 10006

Phone Number: (212) 965-2200_________________________ Fax Number: (2 1 2 )2 2 6 -7 5 9 2 _____________________

E-Mail Address: rmoore@naacpldf.org

rev. 01/08 AK

mailto:rmoore@naacpldf.org


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Dunnet Bay Construction Company v. Erin Borggren, et al. ______ ______________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days ofdocketingoruponthe filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:

O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ S he rrilyn  A . Ifill____________________________________ Date: October 31,2014

Attorney's Printed Name: Sherrilyn A. Ifill_______________________________________________________________

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ______  No

Address: NAACP Legal Defense & Educational Fund, Inc. ______

40 Rector Street, 5th Floor, New York, New York 10006

Phone Number: (212) 965-2200_________________________  Fax Number: (212) 226-7592___________________

E-Mail Address: sifill@naacpldf.org

rev. 01/08 AK

mailto:sifill@naacpldf.org


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Punnet Bay Construction Company v. Erin Borggren, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing'the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:

O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if  any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ V e ro n ica  J. Jo ice _________________________________ Date: October 31, 2014

Attorney's Printed Name: Veronica J. Joice

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ______  No

Address: NAACP Legal Defense & Educational Fund, Inc.

40 Rector Street, 5th Floor, New York, New York 10006

Phone Number: (212) 965-2200_________________________  Fax Number: (2 1 2 )2 2 6 -7 5 9 2 ___________________

E-Mail Address: vjoice@naacpldf.org

rev. 01/08 AK

mailto:vjoice@naacpldf.org


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Punnet Bay Construction Company v. Erin Borggren, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:

O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ D a n ie lle  C. G ray__________________________________ Date: October 31,2014

Attorney's Printed Name: Danielle C. Gray ___

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X  N o___

Address: O'Melveny & Myers LLP

Times Square Tower, 7 Times Square, New York, NY 10036

Phone Number: (212) 326-2000________________________  Fax Number: (212) 326-2061______________

E-Mail Address: dgray@omm.com

rev. 01/08 AK

mailto:dgray@omm.com


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Dunnet Bay Construction Company v. Erin Borggren, et al. ______________________

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:

O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ P3niG l S. Sh8ITI3h_______________________________  Date: October 31,2014

Attorney's Printed Name: Daniel S. Shamah _____

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ______ No

Address: O'Melveny & Myers LLP ________________

Times Square Tower, 7 Times Square, New York, NY 10036

Phone Number: (212)326-2000 ____________________  Fax Number: (212) 326-2061__________________

E-Mail Address: dshamah@omm.com

rev. 01/08 AK

mailto:dshamah@omm.com


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Diinnet Bay Construction Company v. Erin Borggren, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must famish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The fall name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26,1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493___________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:

O'Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if  any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ Elizabeth T. Augustine___________________________ Date: October 31, 2014

Attorney’s Printed Name: Elizabeth T. Augustine_________________________________________

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Yes

Address: O’Melveny & Myers LLP___________

Times Square Tower, 7 Times Square, New York, NY 10036

Phone Number: (212) 326-2092______________________ _ _  Fax Number: (212) 326-2061

E-Mail Address: eaugustine@omm.com

rev. 01/08 AK

mailto:eaugustine@omm.com


CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: Dunnet Bay Construction Company v. Erin Borggren, et al._________________ __________________ _

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or 
amicus curiae, or a private attorney representing a government party, must famish a disclosure statement providing the 
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must 
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs 
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text 
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to 
complete the entire statement and to use N/A for any information that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 
AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The fall name of every party that the attorney represents in the case (if the party is a corporation, you must provide the 
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

NAACP Legal Defense & Educational Fund, Inc.

Appellate Court No: 14-1493____________

(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings 
in the district court or before an administrative agency) or are expected to appear for the party in this court:

O’Melveny & Myers LLP

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and 

N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: 

N/A

Attorney's Signature: S/ Rakesh KilafU_____________________________________ Date: October 31,2014

Attorney's Printed Name: Ffakesh Kiiaru________________________________________________________________

Please indicate if you are Counsel o f Record for the above listed parties pursuant to Circuit Rule 3(d). Y e s ______No _ )

Address: O'Melveny & Myers LLP ____________________________

1625 Eye Street, NW, Washington, DC 20006

Phone Number: (202) 383-5300________________________ Fax Number: (202) 383-5414__________________

E-Mail Address: eaugustine@omm.com

rev. 01/08 AK

mailto:eaugustine@omm.com


TABLE OF CONTENTS

CIRCUIT RULE 26.1 CORPORATE D ISCLOSURE ST A TEM EN T S............................ i

IN TER EST OF A M ICU S................................................................................................................ 1

SUMMARY OF A R G U M E N T ..............................................   1

A R G U M EN T..................................................................................................................................... 4

I. D U NNET BAY HAS NOT ESTABLISHED ANY IN JU R Y ......................4

A. D unnet Bay Com peted on E qual Footing w ith  Its
R elevant C o m p etito rs ................................................................................5

1. All C ontracto rs—Including  D unnet Bay—H ad an
E qual O pportun ity  to Bid on IDOT’s C ontracts 
B ecause T here  W ere No Set-A sides for D B E s.................... 5

2. D u n n e t B ay W as Not D isadvan taged  By the  Race 
of I ts  O w ners Because All C ontractors of Its  Size
W ere Subject to th e  Sam e R u le s ...............................................8

3. D u n n e t Bay C annot R aise the  R ights of a
H ypothetical T h ird  P a rty  If I t  C annot M eet the  
R equ irem en ts of S tand ing  on Its  O w n..................................10

B. D unnet Bay W as N ot Forced to P artic ip a te  in  a
D iscrim inatory  S ch em e ..........................................................................12

II. DU N N ET BAY CANNOT SATISFY THE CAUSATION AND
REDRESSABILITY R EQ U IR EM EN T S........................................................ 15

A. The DBE P rogram  Did N ot In ju re  D unnet Bay Because 
the  F irs t L e tting  Process W as a N ullity, and  D unnet Bay
Did N ot S ubm it th e  Low Bid in  th e  Second L e tt in g .....................15

B. T here Is No M erit to D unnet B ay’s Suggestion th a t  I t
N eed N ot Prove C ausation  and  R ed ressab ility .............................. 17

CO N CLU SIO N ................................................................................................................................ 21

Page

-  xi -



TABLE OF AUTHORITIES

C ases

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995)................................................................................................  1, 3, 7, 8, 18

Barrows v. Jackson,
346 U.S. 249 (1953)............................................................................................................ 11, 12

Cache Valley Ele. Co. v. Utah Dep't of Transp.,
149 F.3d 1119 (9th Cir. 1998)................................................................................................  19

Christian v. United States,
337 F.3d 1338 (Fed. Cir. 2 0 0 3 ).............................................................................................. 16

City of Chicago v. Morales,
527 U.S. 41 (1999).....................................................................................................................  10

City of Los Angeles v. Lyons,
461 U.S. 95 (1983).....................................................................................................................  17

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989)...................................................................................................................... 1

Clapper u. Amnesty In t’l USA,
133 S. Ct. 1138 (2013)....................................................................................................... 14, 17

Concrete Works of Colorado, Inc. v. Denver,
36 F.3d 1513 (10th Cir. 1994)................................................................................................20

Craig v. Boren,
429 U.S. 190 (1976)............................................................................... ............................ 10, 12

Daimler Chrysler Corp. v. Cuno,
547 U.S. 332 (2006)..................................................................................................................  14

DynaLantic Corp. v. U.S. Dep’t of Def.,
885 F. Supp. 2d 237 (D.D.C. 2012).........................................................................................1

Edgewood Manor Apartment Homes LLC v. R SU I Indem. Co.,
733 F.3d 761 (7th Cir. 2013)............................................................................................. 2, 12

Eng’g Contractors A ss’n of S. Fla. Inc. v. Metro. Dade Cnty.,
122 F.3d 895 (11th Cir. 1997).................................................................................................. 6

Page(s)

X l l  -



TABLE OF AUTHORITIES
(continued)

Page(s)

Gratz v. Bollinger,
539 U.S, 244 (2003)..................................................................................................................... 1

Grutter v. Bollinger,
539 U.S. 306 (2003)............................................................................... ..................................... 1

H.B. Rowe Co. v. Tippett,
615 F.3d 233 (4th Cir. 2010).....................................................................................................1

Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)......................................................................................................... 2, 5, 15

Lutheran Church-Mo. Synod v. FCC,
141 F.3d 344 (D.C. Cir 1998)................................................................................................  12

Monterey Mechanical Co. v. Wilson,
125 F.3d 702 (9th Cir. 1997)....................................................................................  13, 14, 20

N. Contracting, Inc. v. III.,
473 F.3d 715 (7th Cir. 2007).....................................................................................................7

N. Contracting, Inc. v. III.,
2004 U.S. Dist. LEXIS 3226 (N.D. III. Mar. 3, 2004) ......................................................20

Ne. Fla. Chapter of the Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656 (1993)......................................................................................  5, 6, 7, 13, 14, 18

Safeco. Ins. Co. of Am. v. City of White House, Tenn.,
191 F.3d 675 (6th Cir. 1999)..................................................................................................  13

Summers v. Earth Island Inst.,
555 U.S. 488 (2009)...............................................................................................................  1 ,4

Texas v. Lesage,
528 U.S. 18 (1999)..................................................................................................................... 16

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 
454 U.S. 464 (1982).................................................................................................................. 15

Warth v. Seldin,
422 U.S. 490 (1975)..............................................................................................................2, 10

R u les  & R eg u la tio n s

49 C.F.R. § 26 .5 ............................................................................................................................8, 9

-  xiii -



TABLE OF AUTHORITIES
(continued)

Page(s)

49 C.F.R. § 26 .53 ................................................................................................................................ 7

49 C.F.R. § 26 .65 (b )..........................................................................................................................9

49 C.F.R. P a r t  26, Appx A ........................................................................................   7

Fed. R. App. P. 29(a).........................................................................................................................1

Fed. R. App. P. 29(c)(5).................................................................................................................... 1

O th er A u th o r itie s

C harles H. Koch, J r ., Federal Practice & Procedure (1st ed. 2006 & Supp. 2014).... 11

-  xiv -



IN TER EST OF AM ICUS

The NAACP Legal Defense and  E ducational Fund, Inc. (“LDF”) is a non­

profit legal corporation estab lished  under th e  law s of the  S ta te  of New York th a t  

has worked for m ore th a n  six decades to secure full civil and  constitu tional rig h ts  

for A frican A m ericans an d  o ther people of color. LDF h as  appeared  as counsel of 

record or amicus curiae in  significant litigation  involving challenges to the  

constitu tionality  of appropria te ly  ta ilo red  race-conscious governm ent p rogram s th a t  

red ress  p a tte rn s  of rac ia l inequality  and  exclusion in  contracting, education, and  

o ther contexts. See, e.g., Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v.

Bollinger, 539 U.S. 306 (2003); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 

(1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); H.B. Rowe Co. v. 

Tippett, 615 F.3d 233 (4th Cir. 2010); DynaLantic Corp. u. U.S. Dep’t of Def., 885 F. 

Supp. 2d 237 (D.D.C. 2012).

U nder Fed. R. App. P. 29(a), LDF files th is  am icus b rief w ith  the  consent of 

all parties. F urtherm ore , u n d er Fed. R. App. P. 29(c)(5), LDF s ta tes  th a t  LD F’s 

counsel au tho red  th is  brief, and  th a t  no party , p a rty ’s counsel, or o ther person, 

con tribu ted  money th a t  w as in tended  to fund p reparing  or subm itting  th is  brief.

SUMMARY OF ARGUM ENT

“The doctrine of s tan d in g ” is a “fundam en tal lim ita tion” on the  power of the  

federal courts. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). In  o rder to 

secure federal jud icial in terven tion  in a controversy, th e  p la in tiff m ust e stab lish  the  

“irreducible constitu tional m inim um  of stand ing”: (1) the  existence of “an  in ju ry  in 

fact” th a t  is “concrete and  p articu la rized” and  “not conjectural or hypothetical”; (2) a

-  1 -



causal connection betw een th e  in ju ry  and  the  conduct com plained o f’; and  (3) the  

court’s ab ility  to red ress  or p reven t th e  alleged in jury  w ith  a favorable ru ling.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotations om itted).

“These are  the  constitu tional m inim um s for s tan d in g  to sue in  federal court; 

th e re  are also ‘p ru d en tia l’ s tand ing  requ irem en ts, one of which is th a t  ‘the  p la in tiff 

generally  m ust a sse rt h is own legal rig h ts  and in te rests , and  cannot re s t h is claim  

to re lief on the  legal righ ts  or in te re s ts  of th ird  p a rtie s .’” Edgewood Manor 

Apartment Homes LLC v. R SU I Indem. Co., 733 F.3d 761, 771 (7th Cir. 2013) 

(quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). S tric t enforcem ent of both  

constitu tional and  p ru d en tia l s tan d in g  requ irem en ts  ensures th a t  courts re ta in  

th e ir  “proper—and properly lim ited—role . . .  in  a dem ocratic society.” Warth, 422 

U.S. a t 498.

Allowing D unnet Bay’s su it to proceed would eviscerate  those requ irem en ts. 

D unnet Bay has not suffered any  “in ju ry  in  fact.” Its  f irs t claim ed in ju ry—th a t  it 

w as denied the  rig h t to com pete on equal footing w ith D isadvantaged  B usiness 

E n terp rises  (DBEs)—is en tire ly  w ithou t m erit. U nlike the  narrow  category of 

contracting  program s th a t  have been invalidated  by th e  Suprem e Court, the  Illinois 

D epartm en t of T ran sp o rta tio n ’s (IDOT) DBE program  does not set aside any 

contracts as u n a tta in ab le  for businesses like D unnet Bay. I t in stead  gives all 

contractors a fa ir chance to w in any  contract, as long as they  m ake a good-faith 

effort to comply w ith  DBE requ irem en ts. N evertheless, D unnet Bay a sse rts  th a t  it 

w as subject to “burdens and  costs not im posed upon a DBE contractor,” A ppellan t’s

- 2 -



Br. 31, because qualified DBEs typically  can use th e ir  own workforces to m eet the  

DBE requ irem en ts, giving them  a leg up over non-DBEs. D ist. Ct. Op. 76. B ut 

DBEs are, by definition, sm all businesses, and  D unnet Bay is not a sm all business. 

Id. The com pany is too large and  successful to qualify as a DBE. Thus, D unnet 

B ay’s claim ed in jury  w as caused by its  size and  not any rac ial classification.

D unnet Bay’s second theory  of in jury  fares no b e tte r. D unnet Bay a sse rts  

th a t  IDOT’s program  “forced D unnet Bay to pa rtic ip a te  in  a  d iscrim inatory  

schem e,” A ppellan t’s Br. 24, b u t th e re  is noth ing  u nconstitu tiona l about IDOT’s 

DBE program . DBE s ta tu s  is based  p rim arily  on size and  socioeconomic factors 

(including race and  gender) and  every contractor in  Illinois plays by the  sam e ru les 

and  h as  equal access to all contracts. Invalida ting  such fa ir and  non-discrim inatory  

p rogram s would “d isq u a lify ]” governm ents from responding  to “[t]he unhappy  

persistence of both  the  practice and  the  lingering effects of rac ia l d iscrim ination  

ag a in s t m inority  groups in  th is  country.” Adarand Constructors, Inc. v. Pena, 515 

U.S. 200, 237 (1995) (p lurality  op.). N othing in the  C onstitu tion  or in  applicable 

p receden t sanctions such an  extrem e resu lt. D unnet Bay’s con trary  a rgum en ts  in 

favor of s tand ing  rely solely on non-binding cases from o ther circuits, which 

fundam entally  m isu nderstand  the  requ irem en ts of A rticle III. Indeed, under 

D unnet B ay’s theory, any contractor could challenge any contracting schem e th a t  

tak es  race in to  account in  any way, regard less of w hether the  program  im poses any 

b u rden  on th e  contractor w hatsoever. The Suprem e C ourt h as  repeated ly

3



explained, tim e a fte r tim e, th a t  federal courts cannot, and  should not, h e a r  such 

generalized  grievances.

Finally, D unnet Bay cannot satisfy  A rticle I l l ’s causation  and  red ressab ility  

requ irem en ts. The firs t bidding process a t issue here—in  w hich D unnet Bay 

su b m itted  the  low bid—w as invalid  for a host of reasons, and  w as nullified as a 

resu lt. T h a t in itia l bidding process did not cause D unnet Bay any in jury , and, even 

if it  had, the  fact th a t  D unnet Bay h ad  a second opportunity  to bid for the  contract 

th ro u g h  a proper and  valid  procedure redressed  any alleged in ju ries re su ltin g  from 

th e  firs t bidding process. In  the  second bidding process, D unnet Bay did not subm it 

th e  low bid, so any alleged in ju ry  D unnet Bay su sta ined  w as caused not by th e  DBE 

program , b u t by th e  h igh cost of D unnet Bay’s bid. D unnet Bay’s only response is 

th e  incredible claim  th a t  causation  and  red ressab ility  “are  not a t  issue” here. 

A ppellan t’s Br. 28. Case law  unequivocally dem onstrates th a t  D unnet Bay m ust 

e stab lish  all of A rticle I l l ’s p rerequ isites  to gain access to federal court, and  it has 

clearly  failed to do so here. Accordingly, the  judgm ent below should be affirm ed .1

ARGUM ENT

I. D U N N ET BAY HAS NOT ESTA BLISH ED  ANY INJU R Y

As the  p la in tiff in  th is  case, D unnet Bay “bears the  burden  of showing [it] has

s tan d in g  for each type of re lief sought.” Summers, 555 U.S. a t 493. A nd because

1 Although this brief focuses solely on the standing question before this court, amicus 
agrees w ith the district court below and the argum ents advanced by the S tate  in  defense of 
the constitutionality of IDOT’s DBE program. See Dist. Ct. Op. 65-73, 78-81; Appellees’ Br. 
43-54. Accordingly, even if this Court finds th a t D unnet Bay has constitutional and 
pruden tial standing to challenge IDOT’s DBE program, the judgm ent below should be 
affirmed.

-  4 -



th is  case is a t  th e  sum m ary  judgm ent stage, D unnet Bay cannot m erely allege th a t  

it  satisfies A rticle I l l ’s req u irem en ts—it m ust prove th a t  th e  req u irem en ts  are  m et. 

Lujan, 504 U.S. a t  561 (at sum m ary  judgm ent, p la in tiff “can no longer re s t 

on . . . m ere allegations, b u t m ust set forth  by affidavit or o ther evidence specific 

facts” estab lish ing  stand ing  (quotations omitted)).

To satisfy  the  stand ing  requ irem en ts, D unnet Bay essen tially  m akes two 

discrete claim s of injury: F irst, the  com pany alleges th a t  the  “im position of racial 

classifications” preven ted  it from com peting on equal footing w ith DBE contractors 

and  th a t  its  bid was denied for its  “fa ilu re  to m eet IDOT’s DBE goal.” A ppellan t’s 

Br. 23-24. Second, D unnet Bay claim s th a t, as a ready  and  able bidder, it w as 

in ju red  by being forced to partic ipa te  in  a contracting  schem e w here race is 

considered in  subcontracting. A ppellan t’s Br. 24. N either claim  estab lishes injury- 

in-fact.

A. D u n n e t B ay  C om p eted  on  E q u al F o o tin g  w ith  Its R e lev a n t  
C om p etitors 1

1. A ll C o n tractors—In c lu d in g  D u n n et B ay—H ad an  E q u al 
O p p o rtu n ity  to  B id  on  IDOT’s C o n tracts  B eca u se  T h ere  
W ere N o S et-A sid es  for D B Es

D unnet Bay’s first claim ed in jury  is th a t  it w as “ready and  able” to bid on the  

E isenhow er Expressw ay contract “b u t IDOT’s DBE p lan  preven ted  it from 

com peting for the  project and  w inning the  aw ard .” A ppellan t’s Br. 29. This alleged 

in ju ry  is prem ised  on a m isreading  of Northeastern Florida Chapter of the General 

Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993) {Northeastern

5



Florida), the  Suprem e C ourt’s sem inal case on the  injury-in-fact req u irem en t in 

equal protection challenges to p rocurem ent program s.

The program  a t issue in  Northeastern Florida requ ired  th a t  10% of the  

overall am ount spen t on contracts in  the  C ity of Jacksonville be set aside for 

‘‘M inority  B usiness E n terp rises ,” defined as “a business whose ow nership w as a t 

leas t 51% ‘m inority’ or fem ale.” Id. a t  658.2 And once a project w as “ea rm ark ed  for 

MBE bidding,” it w as ‘“deem ed reserved  for m inority  business en te rp rises  only’”— 

non-M BEs could not bid a t all, le t alone win the  b idding process. Id. The S uprem e 

Court concluded th a t  an  association of p rim arily  non-M BE contractors h ad  stan d in g  

to challenge th e  ordinance, because they  w ere in ju red  by “th e  inab ility  to com pete 

on an  equal footing in  the  bidding process.” Id. a t 666. W hile the  C ourt found th a t  

the  p la in tiff h ad  s tand ing  to b ring  an  equal protection challenge, its  holding w as 

necessarily  lim ited: “[A] p a rty  challenging a set-aside program  like Jacksonville’s 

need only dem onstrate  th a t  it is able an d  ready  to bid on contracts and  th a t  a 

d iscrim inatory  policy p revents it  from doing so on an  equal basis.” Id. (em phasis 

added); see also Eng’g Contractors A ss’n of S. Fla. Inc. v. Metro. Dade Cnty., 122 

F.3d 895, 906 (11th C-ir. 1997) (quoting Northeastern Florida).3

2 The program  further defined “m inority” as “a person who is or considers him self to be 
black, Spanish-speaking, Oriental, Indian, Eskimo, Aleut, or handicapped.” Id. a t 658.

3 A ppellant cites Engineering Contractors for the proposition th a t “exclusion from contracts 
due to race, ethnic, and gender-conscious criteria constitutes an  injury in fact.” A ppellant’s 
Br. 30, w hen in fact, like Northeastern Florida, th a t case held only th a t a set-aside 
excluding a company from bidding on a contract due to race, ethnic, or gender-conscious 
criteria constituted an injury in  fact. Eng’g Contractors, 122 F.3d a t 901, 906.

- 6 -



IDOT’s DBE program  is not “a set-aside program  like Jacksonville’s.” The 

program  challenged in Northeastern Florida conferred a benefit on people of color 

and  wom en alone. See id. a t 658. IDOT’s program  does not. Instead , it  add resses a 

b roader category of socially and  economically d isadvan taged  businesses and  sets 

a sp ira tional goals for th e ir  partic ipation . See N. Contracting, Inc. u. III., 473 F.3d 

715, 717, 720-24 (7th Cir. 2007) (upholding constitu tionality  of IDOT’s DBE 

program ). F u rth e r, as a tru e  “set-aside” program , Jacksonville’s program  o u trig h t 

precluded non-m inority  contractors from bidding on certa in  projects. See 

Northeastern Florida, 508 U.S. a t  658. IDOT’s program  does not: I t  gives all 

bidders access to all contracts, and  requ ires them  only to m ake an  effort (including 

th rough  m axim ization of race-neu tra l m eans) to comply w ith  generally  applicable 

requ irem en ts. See N. Contracting Inc., 473 F.3d a t 718.4 No contracts are  set aside 

for DBEs.

These d istinctions m ark  an  im portan t difference. All contractors in  Illinois— 

w hether people of color, women, or n e ither—are governed by the  sam e rules. They 

m ust e ith e r m eet th e  proposed DBE partic ipation  ta rg e t or m ake a good fa ith  effort 

to do so. C ontractors in  Jacksonville, by contrast, were on different footing: 

m inority-ow ned contractors h ad  access to all m unicipal contracts, w hereas non­

m inority-ow ned contractors could bid on only a subset. The C ourt’s subsequen t

4 Moreover, where a contractor cannot satisfy the aspirational goals for DBE participation, 
IDOT’s program allows contractors to obtain a waiver by dem onstrating good-faith efforts— 
defined by federal regulations—to comply w ith the goals. 49 C.F.R. 26.53; 49 C.F.R. P a rt 
26, Appx. A; see also Appellees’ Br. 5-6.

7 -



decision in  Adarand Constructors, Inc. v. Pena, reflected the  sam e basic distinction: 

The challenged program  offered prim e contractors a financial bounty for h iring  

m inority  subcontractors. 515 U.S. a t 209. The non-m inority  subcontractors h ad  

stan d in g  to challenge the  program  because the  program  rendered  them  m ore costly 

to hire; as a resu lt, they  could not com pete on equal footing.5 Id. a t 205, 210-12.

B ut the  Suprem e C ourt has never held—or even suggested—th a t  a non-m inority  

contractor has s tan d in g  to challenge a program  th a t, like the  IDOT DBE program , 

tre a ts  all contractors alike.

2. D u n n e t B ay  W as N ot D isa d v a n ta g ed  B y th e  R ace o f  Its
O w n ers B ec a u se  A ll C o n tra cto rs  o f  Its S ize  W ere S u b jec t  
to  th e  Sam e R u les

D unnet Bay a ttem p ts  to bolster its  claim  th a t  the  program  preven ts it  from 

com peting on equal footing w ith  non-DBE contractors by argu ing  th a t, as “a non- 

DBE general contractor, [it] m ust incur costs and  b ear burdens th a t  a DBE general 

contractor would not have.” A ppellan t’s Br. 24. W hile D unnet Bay cannot po in t to 

a DBE contractor who w as advan taged  by IDOT’s policy, id., it argues th a t  it  “need 

only show th a t  it  w as excluded from com petition and  consideration for a 

governm ent benefit because of race-based m easures.” Id. a t 30.

This a rg u m en t also fails: D unnet Bay cannot show th a t  it  w as d isadvan taged

by any alleged “race-based m easures.” The applicable regulations define a DBE as

a “for-profit small business concern” th a t is owned or controlled “by one or m ore

5 Furtherm ore, A darand provided an affidavit from the general contractor from whom it 
sought work stating  th a t the general contractor chose a m inority subcontractor over 
A darand solely to benefit from the financial incentive. Adarand, 515 U.S. a t 205. D unnet 
Bay alleges no such facts.



ind iv iduals who are both socially and  economically d isadvan taged .” 49 C.F.R. § 26.5 

(em phasis added).6 B ut “a firm  is not an  eligible DBE in  any  Federal fiscal year if 

th e  firm  (including its affiliates) h as  had  an  average an n u a l gross receipts . . . over 

the  firm ’s previous th ree  fiscal years, in  excess of $22.41 m illion.” 49 C.F.R.

§ 26.65(b). Thus, D unnet Bay is sim ply too large and  profitable to qualify as a DBE, 

regard less its  ow nership. See D ist. Ct. Op. 76 (“Because D unnet Bay’s average 

gross receipts exceeded $22.41 m illion in  the  th ree  years prio r to 2010, it would be 

ineligible to be classified as a  DBE . . . .”); A ppellees’ Br. 4 n.4, 28.

I t  is tru e  th a t  a DBE contracto r would likely m eet IDOT’s DBE ta rg e t on a 

p a rticu la r project w ith  p a rtic ip a tio n  of its own w ork force and  w ithou t h iring  

subcontractors, w hereas a sim ilarly  s itu a ted  non-DBE could not. See Pacific Legal 

F oundation  Amicus Br. 9-10 (“PLF Amicus B r.”). B ut even if D unnet Bay w ere 

m inority-ow ned, it would not be able to rely on its  own employees to satisfy  the  

DBE requ irem en ts  because it is too large. Instead , it would still have to h ire  DBE 

subcontractors to m eet IDOT’s goals. In  o ther words, the  costs and  burdens giving 

rise  to D unnet Bay’s claim ed in ju ry  are not caused by any racial classification, b u t 

by D unnet Bay’s size. And w hile a non-m inority owned sm all business might be 

able to challenge the  DBE program  based  on increased costs and  benefits,7 D ist. Ct.

6 “Socially and economically disadvantaged” individuals include women, “Black Americans,” 
“Hispanic Americans,” and other people of color. 49 C.F.R. § 26.5.

7 Amicus LDF does not concede tha t any non-minority owned small business would 
necessarily have standing to challenge IDOT’s properly administered program.

9



Op. 77, D unnet Bay cannot “re s t [its] claim  to re lief on th e  legal righ ts  or in te re s ts  

of th ird  p a rtie s .” Warth, 422 U.S. a t  499.

3. D u n n et B ay  C an n ot R a ise  th e  R ig h ts  o f  a H y p o th e tic a l  
T hird  P a r ty  I f  It C an n ot M eet th e  R eq u irem en ts  o f  
S ta n d in g  on  Its O w n

None of the  cases cited by D unnet Bay support its  claim  th a t it can “ra ise  a 

th ird  p a rty ’s rig h ts” to estab lish  stand ing . A ppellan t’s Br. 24; see also 32-33. In  

Craig v. Boren, 429 U.S. 190 (1976), th e  Suprem e C ourt held th a t  the  p lain tiffs 

could a sse rt th e  righ ts  of th ird  p a rtie s  in  cases w here the  p la in tiff h im self had  

satisfied  A rticle I l l ’s constitutional s tan d in g  requ irem en ts. See id. a t 194 (“[W]e 

conclude th a t  appellan t W hitener h as  estab lished  independently  her claim  to a sse rt 

ju s  te rtii  standing. The [challenged s ta tu te s ’] operation p lain ly  has inflicted ‘in jury  

in  fact’ upon appellan t sufficient to g u a ran tee  h er concrete adverseness, and  to 

satisfy  the  constitu tionally  based  stan d in g  requ irem en ts  im posed by A rt. III.” 

(citations omitted)). And in  City of Chicago v. Morales, 527 U.S. 41 (1999), the  

C ourt did not address th ird -p arty  s tan d in g  a t all; ra th e r, it  found th a t  plain tiffs 

could b ring  a facial challenge to a crim inal s ta tu te  u n d er which they  were 

convicted—th a t is, w here they  h ad  unquestionab ly  suffered a clear injury. See id. 

a t 49-50 (crim inal s ta tu te  resu lted  in  over 89,000 d ispersal orders and  42,000 

a rre s ts  during  th ree  years of enforcem ent, including the  a rre s t of the  petitioner). 

Thus, these cases are  to ta lly  inapposite—D unnet Bay cannot satisfy the  

constitu tional elem ents to support a finding of A rticle III s tand ing  for itself.

Nor does the  p ru d en tia l s tan d in g  ru le  contain a general exception for the  

“need to protect fundam en ta l rig h ts .” A ppellan t’s Br. 32; see also Warth, 422 U.S.

-  1 0 -



499-501; C harles H. Koch, Jr ., Federal Practice & Procedure § 8413 (1st ed. 2006 & 

Supp. 2014). A rguing otherw ise, D unnet Bay cites Barrows u. Jackson, 346 U.S. 

249 (1953). B ut Barrows does not help D unnet Bay. The question in  Barrows w as 

w h e th er a racially  restric tive  covenant could be enforced ag a in s t a w hite rea l e s ta te  

p roperty  ow ner who breached the  covenant by “perm itting  non-C aucasians to move 

in  an d  occupy th e  prem ises.” Id. a t 252. As the  Court observed, allow ing th e  su it to 

proceed would undeniably  deprive “non-C aucasians . . .  of equal protection of the  

law s because it would encourage “a prospective seller of res tric ted  lan d  . . . [to] 

refuse to sell to non-C aucasians or else will requ ire  non-C aucasians to pay  a h igher 

price to m eet the  dam ages which the  seller m ay incur.” Id. a t  254. B ut “no non- 

C aucasian  [wa]s before the  C ourt,” ra is in g  the  question w hether the  w hite  rea l 

e s ta te  ow ner could “rely on th e  invasion of the  righ ts  of o thers in  h e r defense to th is  

action.” Id. a t  254-55.

The C ourt began its analysis by affirm ing th a t “[o]rdinarily, one m ay not 

claim  stan d in g  in  th is  C ourt to vindicate the  constitu tional rig h ts  of some th ird  

p a rty .” Id. a t 255; see id. (“[A] person cannot challenge th e  constitu tionality  of a 

s ta tu te  un less he shows th a t  he h im self is in ju red  by its operation.”). B ut th a t  

principle, the  C ourt noted, “has no application to the  in s ta n t case” because the  

p roperty  ow ner had  “been sued for dam ages to ta ling  $11,600,” and  “a judgm en t 

ag a in s t responden t would constitu te  a direct, pocketbook in ju ry  to her.” Id. a t  255- 

56 (em phasis added). As explained above, D unnet Bay has not itself suffered the  

loss of any  legally protected in te rest, m eaning  th a t  its  s itu a tio n  is not analogous to

11



Ms. Jack so n ’s. See supra a t Section I.A .l & 2. In  dicta, the  Court added th a t  the  

“ru le  denying s tand ing  to ra ise  an o th e r’s rig h ts” should in  any event yield in  the  

“un ique situ a tio n ” and  “peculiar c ircum stances of th is  case,” w here th a t  i t  would be 

“difficult if not im possible for the  persons whose righ ts  are  asserted  to p re sen t th e ir  

grievance before any court.” Id. a t 257. T h a t ru lin g  m ade sense in  Barrows, w here 

m inorities seeking to re n t or purchase p roperties—th e  th ird  p a rtie s  actua lly  

ha rm ed  by th e  restric tive  covenants—would clearly  lack stand ing  to challenge the  

enforcem ent of those covenants ag a in s t landow ners. B ut it m akes no sense h e re— 

th e  bidders th a t  D unnet Bay claim s are  in ju red  by th e  DBE program  (such as a 

leg itim ate  sm all business) could p roperly  challenge th is  scheme, assum ing  th e  

rem ain ing  A rticle III requ irem en ts  w ere satisfied .8 Barrows th u s  provides no basis 

for d eparting  from the  o rd inary  operation  of p ru d en tia l s tand ing  requ irem en ts. See 

Edgewood Manor, 733 F.3d a t 771.

B. D u n n et B ay  W as N ot F o rced  to  P a r tic ip a te  in  a D iscr im in a to r y  
S ch em e

D unnet Bay’s second theory  of in jury  fares no be tte r. On its  view, th e  en tire  

DBE program  is unconstitu tional because it im perm issibly requires D u n n e t Bay to

8 D unnet Bay also cites Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350 (D.C. 
Cir 1998) for the proposition th a t pruden tial lim itations on standing are inapplicable. 
A ppellant’s Br. 33. But in  Lutheran, the D.C. Circuit found th a t the plaintiff Church had 
unquestionably suffered an injury: the FCC order finding it in violation of EEO regulations 
and the resu ltan t regulatory burdens placed on the Church. 141 F.3d a t 350. Although the 
Court stated, in dicta, th a t “[w]hen the law m akes a litigant an  involuntary partic ipan t in a 
discrim inatory scheme, the litigant may attack th a t scheme by raising a th ird  p arty ’s 
constitutional rights,” id., it was referring to instances (as in Lutheran, Barrows, and 
Boren) where a plaintiff th a t has satisfied Article I l l ’s elements can proceed to raise  the 
rights of others. D unnet Bay cannot satisfy those elem ents on its own.

12



consider race in  subcontracting . B ut th a t  view finds no support in  applicable 

Suprem e C ourt precedent.

Lacking such support, D unnet Bay (and its  am icus PLF) in s tead  rely on out- 

of-circuit cases th a t  allegedly find stan d in g  in  sim ila r circum stances. D unnet Bay 

and  PLF principally  h igh ligh t Monterey Mechanical Co. v. Wilson, 125 F.3d 702 (9th 

Cir. 1997), w hich (they say) found th a t  a  non-m inority  general contractor had  

s tand ing  to challenge a sim ilar p rogram  on the  ground th a t  th e  program  requ ired  

the  contractor to d iscrim inate  in  h iring . As explained below, Monterey Mechanical 

is d istinct from th is  case in  one im p o rtan t respect: The contractor in  th a t  case 

(unlike D unnet Bay) w as able to estab lish  th a t  it  lost the contract because it  did not 

m eet the  good-faith requ irem en t of the  m inority  con tracting  program , and, 

therefore, the  challenged program  actually  caused its  in jury . See infra a t  Section

II. B. D unnet Bay also cites Safeco. Ins. Co. of Am. v. City of White House, Tenn.,

191 F.3d 675 (6th Cir. 1999), w hich is sim ilarly  inapposite. There, the  court found 

th a t  a non-m inority  contractor who lost a bid had  s tand ing  to challenge th e  EPA’s 

m inority  contracting  requ irem en ts  because the  contractor’s fa ilure  to comply w ith  

those requ irem en ts  directly re su lted  in  the  contractor being ineligible for the  

contract. Id. a t 689.

F urtherm ore , Monterey Mechanical contains a freew heeling theory  of A rticle 

III in ju ry  th a t  sim ply cannot be squ ared  w ith  the  Suprem e C ourt’s guidance on 

standing . In  Monterey Mechanical, the  N in th  C ircuit concluded th a t  “the  b u rden  of 

bidding in  a  d iscrim inatory  context estab lished  by s ta tu te  is, u n d er Northeastern

- 1 3 -



Florida, in jury  in  fact caused by th e  challenged s ta tu te .” 125 F.3d a t 707. B ut as 

explained above, see infra a t Section I.A .I., th a t  theory  re s ts  on a fu n d am en ta l 

m isread ing  of Northeastern Florida. The finding of an  in jury  in  program s like 

Jacksonville’s—i.e., p rogram s th a t  preclude non-m inority  contractors from 

com peting a t all for certa in  projects or th a t  provide specific benefits or advan tages 

solely to m inority  contractors—is self-evident, No such in ju ry  is dem onstrated  

w here, as here, all contractors have a  fa ir chance to com pete for any con tract and  

the  DBE program  does not operate  to give m inority  contractors an  irrevocable leg 

up over non-m inority  contractors. This C ourt should not rep ea t the  N in th  C ircu it’s 

m isapplication of Northeastern Florida.

M oreover, Monterey Mechanical cannot be squared  w ith the  Suprem e C ourt’s 

guidance on standing . In  case afte r case, year a fte r year, the  Court h as  m ade clear 

th a t  A rticle I l l ’s requ irem en ts  p lay a m eaningful gatekeeping  role. See, e.g., 

Clapper v. Amnesty In t’l USA, 133 S. Ct. 1138, 1146 (2013) C“[N]o principle is m ore 

fundam ental to the  jud ic iary ’s proper role in  our system  of governm ent th a n  the  

constitu tional lim ita tion  of federal-court ju risd ic tion  to ac tua l cases or 

controversies.’” (quoting Daimler Chrysler Corp. u. Cuno, 547 U.S. 332 (2006))). The 

ru le of Monterey Mechanical—and the  ru le  D unnet Bay urges—would v itia te  th a t  

requ irem ent, allowing any contractor to challenge any contracting schem e th a t  

takes race into account in  any way, regard less w hether the  program  im poses any 

unique burden  on the  contractor. A rticle III does not p erm it such a resu lt. A ru le  

conferring s tand ing  on anyone th a t  partic ipa tes  in  a federally-funded program  th a t

14



allows considerations of economic or social d isadvan tage  would fly in  th e  face of 

long-established stan d in g  law  th a t  bars  p lain tiffs from bring ing  generalized 

grievances to the  federal courts. Lujan, 504 U.S. a t  573-74 (“We have consisten tly  

held  th a t  a p la in tiff ra is in g  only a generally  available grievance about 

governm ent—claim ing only h a rm  to h is and every citizen’s in te re s t in  proper 

app lication  of the  C onstitu tion  and  laws, and  seeking re lief th a t  no m ore directly 

an d  tang ib ly  benefits him  th a n  it does the  public a t large—does not s ta te  an  A rticle 

III case or controversy.”).

II. D U N N ET BAY CANNOT SATISFY THE CAUSATION AND
REDR ESSA BILITY  REQ UIREM ENTS

D unnet Bay h as  also failed to estab lish  th a t  the  DBE program  w as the  cause 

of any  alleged in jury  or th a t  a favorable ru ling  would red ress  the  alleged injury. See 

Lujan, 504 U.S. a t 560-61; Valley Forge Christian Coll. v. Ams. United for 

Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).

A. T he DBE P ro g ra m  D id  N ot In ju re  D u n n et B ay  B ec a u se  th e
F irs t L e ttin g  P ro cess  W as a N u llity , and  D u n n e t B ay  D id  N ot 
S u b m it th e  L ow  B id  in  th e  S eco n d  L ettin g

D unnet Bay cannot estab lish  th a t  the  DBE program  caused it any in ju ry  

du ring  the  firs t le tting  process, because the  first le ttin g  w as a nullity . To be sure, 

D unnet Bay subm itted  the  low bid during  th a t  process. A ppellees’ Br. 19. B ut 

IDOT m ispriced the  contract, re su ltin g  in all of the  bids—including D unnet B ay’s— 

com ing in  over th e  project estim ate . Defs.’ Mot. for Sum m . J. f  f  194, 198; see also 

A ppellees’ Br. 19 & n.10, 25; Dist. Ct. Op. 56, 73. F u rth e r, IDOT in ad v erten tly  left 

D unnet Bay off th e  for-bid list, ham pering  its ability  to satisfy  DBE requ irem en ts.

1 5 -



D ist. Ct. Op. 73. Those reasons, am ong others, p rom pted IDOT to re-le t the  project, 

nullify ing th e  re su lts  of th e  firs t bidding. See A ppellees’ Br. 25; Dist. Ct. Op. 80 n.5 

(finding th a t  IDOT “carefully  considered” num erous factors in  the  decision to re-let).

B ecause the  firs t b idding  w as a nullity , D unnet Bay cannot estab lish  th a t  the  

operation  of the  DBE program  caused  it any  h a rm —th ere  w as no opportun ity  for 

anyone to w in th e  contract, regard less  of the  program  requ irem en ts. Cf. Texas v. 

Lesage, 528 U.S. 18, 20-21 (1999) (Lesage) (“[Ejven if the  governm ent h as  considered 

an  im perm issib le  criterion  in  m aking  a decision adverse to the  plaintiff, i t  can 

nonetheless defeat liab ility  by d em onstra ting  th a t  it would have m ade the  sam e 

decision absen t th e  forbidden consideration .”); Christian v. United States, 337 F.3d 

1338, 1344 (Fed. Cir. 2003) (challenge a sse rtin g  rac ial d iscrim ination  w as rejected 

because th e  “case fit com fortably” w ith in  Lesage). And even if D unnet Bay could 

show th a t  the  application of th e  DBE program  requ irem en ts  to the  firs t le ttin g  

would have caused h a rm  to D unnet Bay—which it canno t9—D unnet B ay’s 

p u rpo rted  in ju ry  could not be red ressed  by the  declaratory  and  injunctive re lie f it 

seeks, because the  first le ttin g  w as rendered  nu ll by the  decision to re-le t the  

bidding. The second le tting , in  o ther words, w as the  red ress for D unnet B ay’s 

pu rpo rted  injury.

D unnet Bay suggests th a t  th e  flaws in  the  in itia l le ttin g  process provide 

s tan d in g  for a constitu tional challenge to the  DBE program , A ppellan t’s Br. 39-41,

9 See Dist. Ct. Op. 80 & n.5 (finding th a t D unnet Bay could not show th a t it would have won 
the contract bu t for the DBE requirem ents because its bid was over IDOT’s estim ates for 
the project).

- 1 6 -



even though  IDOT rem edied  those very flaws by re -le tting  th e  bidding. D ist. Ct.

Op. 80 n.5. B ut the  flaws in  th e  firs t le ttin g  w ere anom alous: th e re  is no evidence 

th a t  D unnet Bay, which h as  p a rtic ip a ted  in  num erous IDOT bids, see A ppellan t’s 

Mot. for Sum m . -J. *jf 60, h ad  ever been  left off the  for-bid lis t before, or th a t  it  w as 

common for IDOT to m isprice a contract. A p la in tiff does not have s tan d in g  to file 

an  equal protection su it for declara to ry  and  in junctive re lief—and  seek rem edial 

dam ages—for an  in itia l flaw in  th e  process th a t  w as rem edied and  bears  little  risk  

of happen ing  again. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (the fact of 

p a st in ju ry  “does no th ing  to estab lish  a rea l and  im m ediate  th re a t th a t  [the 

plaintiff] would again” suffer s im ila r in ju ry  in  the  future).

F u rth e r, in  th e  second le tting , th e  DBE program  still did not cause D unnet 

Bay any injury. In  the  second le tting , D unnet Bay m et IDOT’s DBE ta rg e ts , b u t did 

not offer the  low bid. D ist Ct. Op. 30; A ppellees’ Br. 26. I t  accordingly did not lose 

th e  con tract because of its  fa ilu re  to satisfy  DBE requ irem en ts, b u t because its  bid 

w as too high. Thus, D unnet Bay cannot show th a t  IDOT’s DBE program  caused 

D unnet Bay any injury.

B. T h ere  Is N o M erit to  D u n n e t B a y ’s S u g g e s t io n  th a t It N eed  N ot 
P rove  C a u sa tio n  an d  R ed ressa b ility .

D unnet Bay does not address any  of the  foregoing analysis. I t in s tead  

a sse rts—w ithout cita tion—th a t  causation  and  red ressab ility  “are  not a t issue .” 

A ppellan t’s Br. 28. T hat, of course, cannot be tru e  in  th e  ab strac t—th e  Suprem e 

C ourt h as  m ade clear th a t  causation  and  red ressab ility  are  a t issue in  every case, 

because they  a re  essen tia l p a rts  of the  A rticle III inquiry. Clapper, 133 S. Ct. a t

-  17



1147. To the  ex ten t D unnet Bay or its  am ici provide any exp lanation  for its  

im plausib le assertion , it  is th a t—in th e ir  view—D unnet Bay need not satisfy  the  

causation  and  red ressab ility  prongs of A rticle III s tand ing  under th e  ru le  

announced in  Northeastern Florida. PLF Am icus Br. a t  10-11 & n .6. This 

a rg u m en t dem onstrates a m isu n d erstan d in g  of th a t  case.

The C ourt in  Northeastern Florida did not hold th a t  causation and  

red ressab ility  did not need to be sep ara te ly  pleaded and  satisfied. R ather, the  

C ourt held  th a t  in  th e  context of th e  challenged set-aside program , the  n a tu re  of the  

in jury-in-fact rendered  th e  second two prongs of the  s tan d in g  te s t self-evident. 508 

U.S. a t 666 n.5 (“It. follows from our definition o f ‘in jury-in-fact’ th a t  p e titio n er has 

sufficiently alleged both th a t  th e  city’s ordinance is the  ‘cause’ of its  in ju ry  an d  th a t  

a jud icial decree directing the  city to discontinue its  program  would ‘red ress’ the  

in ju ry .”). And it  was: the  in ju ry  w as caused by a set-aside th a t  precluded non­

m inority  contractors from com peting for a certa in  percentage of con tracts  an d  could 

be red ressed  by rem oving th a t  barrie r.

C ausation  and  red ressab ility  w ere likew ise self-evident in  Adarand  given 

th a t  the  law specifically sanctioned  financial incentives for general contractors th a t  

h ired  m inority-ow ned businesses, w hich had  the  effect of inducing general 

contractors to favor those sub-contractors over non-m inority  subcontractors like 

A darand. F a r from finding causation  and  red ressab ility  “irre lev an t,” th e  C ourt 

noted the  specific facts averred  by A darand  to support both elem ents. See 515 U.S. 

a t 205 (noting th a t  A darand  provided an  affidavit from the  general con tracto r from

18



whom it sought w ork a tte s tin g  to the  fact th a t  it  chose a m inority  subcontracto r 

over A darand  in  order to receive the  financial incentive).

H ere, by con trast, causation  and  red ressab ility  are  not self-evident because 

IDOT’s program  is not a set-aside program . The T en th  C ircuit’s opinion in  Cache 

Valley Electric Co. v. Utah Department of Transportation, 149 F.3d 1119 (9th Cir. 

1998) (Cache Valley), illu s tra te s  how th e  causation  and  red ressab ility  analysis  

should proceed in  such circum stances. In  Cache Valley, th e  plaintiff, a 

subcontractor, challenged the  U tah  D epartm en t of T ra n sp o rta tio n s  (“UDOT”) 

im plem enta tion  of a federal DBE program  th a t  is nearly  iden tical to ID O T’s. 

Though th e  T en th  C ircuit found th a t  Cache Valley estab lished  an  in ju ry  because 

two prim e contractors a tte s ted  to the  fact th a t  they  would have subcontracted  w ork 

to Cache Valley b u t for the  DBE program , it held  th a t  Cache Valley did not have 

stan d in g  because it could not dem onstrate  causation  or redressab ility . Id. a t 1123. 

The court reasoned  th a t  the  allegedly unconstitu tional preferences w ere severable 

from th e  re s t of the  DBE program , and  Cache Valley h ad  failed to produce evidence 

th a t  e lim ina ting  th e  preferences would “m ean ingfu lly ] reducje] the  num ber of 

qualifying D BEs” com peting ag ainst th e  plaintiff. Id.; see also id. a t 1124-25. Thus, 

far from exem pting Cache Valley from the  o ther s tand ing  requ irem en ts, th e  T en th  

C ircuit analyzed  the  n a tu re  of Cache V alley’s claim s and  in juries, as well as the  

challenged program s, to determ ine w hether causation  and  red ressab ility  w ere m et, 

and, in  fact, concluded th a t  they  w ere not.

1 9 -



In  th is  respect, th e  out-of-circuit au th o ritie s  D unnet Bay cites—such as 

Monterey Mechanical—support th e  S ta te ’s position. In Monterey Mechanical, the  

case for causation  and  red ressab ility  w as clear: The p la in tiff contractor sub m itted  

the  low est bid, b u t the  con tract w as aw arded  to the  second-lowest b idder because of 

M onterey M echanical’s fa ilu re  to comply w ith  the  DBE program ’s requ irem en ts.

125 F.3d a t 704. The sam e w as tru e  in  Concrete Works of Colorado, Inc. v. Denver, 

36 F.3d 1513, 1518 n.5 (10th Cir. 1994).10 B ut it  is not tru e  here: the  con tract w as 

even tually  aw arded  to th e  low est b idder (which w as not D unnet Bay), an d  th e  first 

process (in which D unnet Bay w as th e  low est bidder) w as a nullity. D unnet Bay 

has failed to show th a t  it  w as in  any way harm ed  or d isadvan taged  by IDOT’s DBE 

program , or th a t  rem oving the  program  requ irem en ts  would now redress its  non­

ex isten t in juries.

10 Likewise, the plaintiff contractor in Northern Contracting showed that it “would have 
won at least two of the three contracts . . . but for the DBE goals.” N. Contracting, Inc. v.
III., 2004 U.S. Dist. LEXIS 3226, at *84-85 (N.D. 111. Mar. 3, 2004). In addition, tha t 
contractor—unlike Dunnet Bay—had annual gross revenues tha t would have qualified it as 
a small business. Id. at 6-7; see supra at 7-8.

- 2 0



CONCLUSIO N

For the  foregoing reasons, th is  C ourt should affirm  the  D istric t C ourt’s 

decision.

Respectfully subm itted ,

/s/ D anielle C. G ray_______________
D anielle C. Gray, Esq.
D aniel S. S ham ah, Esq.
R akesh  K ilaru , Esq.
E lizabeth  T. A ugustine, Esq. 
O’M elveny & M yers LLP 
Tim es S quare  Tower 
7 Tim es Square 
New York, NY 10036 
Attorneys for Amicus Curiae

S herrilyn  A. Kill, Esq.
President & Director-Counsel 

J a n a i S. Nelson, Esq.
C h ristina  A. Sw arns, Esq.
R yan P. Haygood, Esq.
R eN ika C. Moore, Esq.
V eronica J . Joice, Esq.
NAACP Legal Defense &

E ducational Fund, Inc.
40 Rector S tree t, 5th Floor 
New York, New York 10006 
Attorneys for Amicus Curiae

21



CERTIFICATE OF COM PLIANCE

This b rief complies w ith  th e  type-volum e lim ita tion  of Fed. R. App. P. 

32(a)(7)(B) and  Fed. R. App. P. 29(d) because th e  b rief contains 5,494 words, 

excluding the  p a rts  of the  b rief exem pted by Fed. R. App. P. 32(a)(7)(B)(iii).

This b rief complies w ith  th e  typeface req u irem en ts  of Fed. R. App. P. 32(a)(5) 

and  the  type style requ irem en ts  of Fed. R. App. P. 32(a)(6) because th e  b rief w as 

p repared  in  a proportionally-spaced typeface using  M icrosoft W ord 2010 in  12-point 

C entury  Schoolbook font.

Is/ D anielle C. G ray__________________
D anielle C. Gray, Esq.
O’M elveny & M yers LLP 
Tim es Square  Tower 
7 Tim es Square 
New York, NY 10036 
Attorneys for Amicus Curiae

D ated: October 31, 2014

2 2 -



CERTIFICATE OF SERVICE

I hereby certify th a t  on October 31, 2014, I electronically  filed the  foregoing 

B rief of Amicus Curiae NAACP Legal Defense and  Educational Fund, Inc. w ith  the  

C lerk  of th e  C ourt for the  U nited  S ta tes  C ourt of A ppeals for th e  S eventh  C ircuit by 

u sing  the  CM /ECF system .

I fu r th e r certify th a t  some o th er p a rtic ip an ts  in  th e  case are  CM /ECF users 

an d  will be served via the  CM/ECF system :

E dw ard  R. Gower M ary E. W elsh
HINSHAW  & CULBERTSON LLP A ssistan t A ttorney  G eneral
400 S. N in th  S tree t, Suite 200 Office of the  A ttorney  G eneral
Springfield, IL  62701 100 W. R andolph S tree t, 12th Floor
Attorneys for Appellant Chicago, IL 60601

Attorneys for Appellees

R alph W. K asarda  
PACIFIC LEGAL FOUNDATION 
930 G S tree t 
Sacram ento , CA 95814 
Attorneys for Amicus Curiae for 

Plaintiff-Appellant

M ichael S hakm an  
Thom as S tau n to n
M ILLER, SHAKMAN & BEEM  LLP 
180 N. L aSalle  S tree t, Suite  3600 
Chicago, IL  60601 
Attorneys for Amicus Curiae for 

Plaintiff-Appellant

23 -



I fu r th e r certify th a t  the  following p artic ip an ts  in  the  case are  not reg istered

CM /ECF users. On October 31, 2014, 2 copies of th e  B rief of Amicus Curiae NAACP

Legal Defense & E ducational Fund, Inc. in  support of D efendants-A ppellees and

A ffirm ance w ere sen t v ia  first-class m ail, proper postage p repaid  to the  following

non-CM /ECF partic ipan ts::

E dw ard  W. Feldm an 
M ILLER, SHAKMAN & BEEM  LLP 
180 N. LaSalle S tree t, S u ite  3600 
Chicago, IL  60601 
Attorneys for Amicus Curiae for 

Plaintiff-Appellant

Nick G oldstein 
AM ERICAN ROAD AND

TRANSPORTATION BUILDERS 
ASSOCIATION 

1219 28th S tree t N.W.
W ashington, DC 20007 
Attorneys for Amicus Curiae for 

Plaintiff-Appellant

E rik  P. Lewis
O FFIC E OF TH E ATTORNEY
GENERAL
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Springfield, IL 62706-0000

E llen  Schanzle-H askins 
ILLIN O IS DEPARTM ENT OF 
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S uite  300
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/s/ D anielle C. Gray__________________
D anielle C. Gray, Esq.
O M elveny & M yers LLP 
Attorneys for Amici Curiae

D ated: October 31, 2014

24



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